News

Jahi McMath: Case heads to federal court Friday

By David DeBolt

Oakland Tribune

Posted:
01/02/2014 04:54:26 PM PST

Updated:
01/02/2014 05:11:26 PM PST

OAKLAND -- The family of Jahi McMath and the hospital seeking to have the brain-dead 13-year-old taken off a ventilator will meet in federal court for the first time Friday, possibly working toward an end to the ongoing battle over the girl's fate.

A federal magistrate ordered the settlement conference between the family and Children's Hospital Oakland for 11 a.m. Friday. The order comes as Jahi's family continues to search for a doctor that will perform medical procedures required to move her to another facility for long-term care.

The family says it has located a facility that will be take her, and has consent from the Alameda County Coroner's Office to move Jahi, but they are missing a key component: finding a doctor to perform a tracheotomy for breathing and to insert a gastric tube for feeding.

Jahi McMath, 13, who went in for a routine surgery to get her tonsils removed Monday, is now brain dead after complications post surgery. (Courtesy of the McMath Family) (Omari Sealey)

A doctor and lawyer on Thursday described the standoff as a "Catch-22." Because Jahi is brain dead -- the equivalent of the end of life in the medical field -- no doctors at Children's Hospital nor most around the country will perform the procedures. Outside doctors cannot operate inside the Oakland hospital, leaving the family with the option of moving her to a nearby facility for an emergency operation before she can be flown to New Beginnings Community Center on Long Island in New York, the facility that has agreed to accept Jahi.

But as it stood Thursday afternoon, no doctor has agreed to perform a tracheotomy for breathing and insert a gastric tube for feeding. Three separate courts have denied requests by the family attorney, Christopher Dolan, to order the hospital to perform the operations on Jahi. Another request was filed by Dolan in Alameda County Superior Court on Thursday.

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Meanwhile, a temporary restraining order keeping Jahi on a ventilator is set to expire on Tuesday.

"They have until Tuesday for someone to blink, and it doesn't look like anyone is blinking," said Bruce Fagel, a licensed physician from Southern California who now works as a medical malpractice lawyer.

A Dec. 9 surgery to remove her tonsils and tissue from her nose and throat to treat sleep apnea was completed without incident, but she began bleeding profusely after the surgery. She went into cardiac arrest the same night and was pronounced brain dead on Dec. 12, with multiple doctors saying there is no blood flowing to her brain and no chance of recovery.

Nailah Winkfield, mother of Jahi McMath,13, who has been declared brain dead after a routine tonsillectomy, talks to media with her husband Martin Winkfield, in front of Children's Hospital in Oakland, Calif., on Monday, Dec. 16, 2013. (Laura A. Oda/Bay Area News Group) (Laura A. Oda)

Jahi's family, however, does not accept that diagnosis. A doctor the family brought in to observe Jahi has testified under oath that he believes she is alive, according to court documents.

Doctors and ethicists have said it is unheard of for a patient declared brain dead to be moved to a long-term facility. The same experts have said the hospital is following state law and that the hospital's position is what would be expected from other facilities.

"It's a pretty rare situation," Ryan Holmes, a bioethicist with the Markkula Center for Applied Ethics at Santa Clara University, told the Bay Area News Group last week. "In most cases, while it's a devastating diagnosis, people understand there's not anything that can be done when they determine the patient's brain is not functioning. But I understand why this family is hesitant to do that; they certainly have been put through a lot."

Lawyers for Children's Hospital have said the facility will allow a transfer of Jahi's body to another location if the family meets three requirements: naming the facility Jahi would be moved to, and providing the facility's terms and conditions; naming who will physically transfer Jahi and identifying the travel plans; and obtaining consent from the county coroner's office.

Hospital spokesman Sam Singer said Thursday the hospital has not heard from any facility.

"We have not received one single phone call," Singer said. "It's unfair and unethical to hold out hope in this case. It's perpetuating a tragic hope on the public that anything could be done. It's never happened before and it's not going to happen here."